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cs123

Exercising Option CLINs for Service Tasks that Don't Extend the Term of the Contract

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What are everyone's thoughts on the below hypothetical scenario. I have a real life scenario that would benefit from the answering of the below questions. I ask these questions because I am perplexed because I think the FAR does not really address the below situation/scenario.

HYPOTHETICAL SCENARIO:
I have a contract set up as follows:

(1) CLIN 00001 - Base Year (12 months) - Janitorial Services
(2) CLIN 00002 - Optional Vacuuming Task (task can be ordered at any time during the first four months of the Base Year Period of Performance)

(3) CLIN 00003 - Optional Cleaning Task (Wash and Rinse all Trash Cans) (task can be ordered at any time during the first four months of the Base Year Period of Performance)

After CLIN 0001 is exercised and I have a year of janitorial services, under what clause authority SHOULD the contract have included to properly exercise CLINs 00002 and 00003? As everyone knows, the FAR only has two Option Clauses for extending service contracts, but which clause(s) should be used to order an optional task for a service that does not extend the period of performance of the entire contract?

Can I use 52.217-7 Option for Increased Quantity--Separately Priced Line Item for these option CLINs, even though the contract is a service contract. What would be the implications for the inclusion?

Should I have my policy office develop an Agency contract clause that addresses the nature of the above scenario?

Thanks for all of the help in advance!

For reference, a similar scenario was posted on Ask the Professor:
https://dap.dau.mil/aap/pages/qdetails.aspx?cgiSubjectAreaID=3&cgiQuestionID=113293%C2'>

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Guest Vern Edwards

Can I use 52.217-7 Option for Increased Quantity--Separately Priced Line Item for these option CLINs, even though the contract is a service contract.

What would be the implications for the inclusion?

Should I have my policy office develop an Agency contract clause that addresses the nature of the above scenario?

My response to the first of the above three questions is, Yes. Read the clause. It should be obvious that you can use it in a service contract in the scenario that you described. Its use is not limited to supply contracts. You should probably delete the third sentence of the clause, since, presumably, the contract otherwise specifies the timing and frequency of the option tasks.

My response to the second question is that the implication ought to be that that the parties will adhere to the terms of their contract, including options.

My response to the third question is, No.

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My response to the first of the above three questions is, Yes. Read the clause. It should be obvious that you can use it in a service contract in the scenario that you described. Its use is not limited to supply contracts. You should probably delete the third sentence of the clause, since, presumably, the contract otherwise specifies the timing and frequency of the option tasks.

Thanks Vern. I read the prescription of the clause and it says to insert the clause "in solicitations and contracts, other than those for services", so that it why I was thinking it could not be used for services.

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Guest Vern Edwards

FAR 17.208(e) does say "other than those for services." However, that is undoubtedly because the FAR councils think of service options as being for extensions, not for the addition of tasks. FAR Subpart 17.2 does not anticipate the use of that kind of option in service contracts, but it does not prohibit them. Adapt the clause as I suggested and use it. You can write another clause if you like, but why bother if the existing clause will serve your purpose? Keep it simple. If your reviewers give you a problem, then write a Section H clause or something similar. For that matter, you can write the term into the CLIN description,

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I agree with Vern. FAR 17.204 (f) does mention use of options for additional services with separate line items but 17.208 just doesn't prescribe a specific clause to use. So just adapt or create the appropriate language. In reading 17.2 in total, I think it allows some flexibility where appropriate and necessary.

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I recently had the same question about the authority to exercise an Optional Task for service contracts. So, is the language "insert a clause substantially the same as the following" give you the authority to change a FAR clause and delete the sentence? Or do you have to submit a formal deviation to delete a sentence or information from a FAR clause?

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I recently had the same question about the authority to exercise an Optional Task for service contracts. So, is the language "insert a clause substantially the same as the following" give you the authority to change a FAR clause and delete the sentence? Or do you have to submit a formal deviation to delete a sentence or information from a FAR clause?

FAR 17.204 ( f ) (3) authorizes options for additional services.

"(f) Contracts may express options for increased quantities of supplies or services in terms of --

(1) Percentage of specific line items,

(2) Increase in specific line items; or

(3) Additional numbered line items identified as the option."

Assuming that there is no clause prescribed for additional services, you'd have to

(1) develop language to cover the terms and conditions for evaluating and exercising

the option(s), or

(2) write a clause to cover those terms and conditions, or

(3). Write a clause as in (2) by adapting the language from a similar, existing clause that isn't prescribed for service contract options for additional services. This is done for convenience rather than starting from scratch. If no clause is prescribed, then the language regarding "... substantially the same as" isn't applicable, because you are developing a new clause or provision for that contract, not deviating from that partially borrowed clause, aren't you? Actually, when adapting the language of existing clause for another situation, you should use another, unique local clause number, shouldn't you?

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When we developed clauses for design-build construction contracts over the past 25 years or so, we adapted a couple of clauses that were written for architect-engineer contracts to cover roles and responsibilities that are distinct in D-B contracts from those in A-E contracts. We renamed, edited and renumbered the clauses. But we didn't deviate from those A-E clauses because a D-B contract isn't an A-E contract and there were no FAR clauses that cover the unique roles and responsibilities for D-B. There still aren't any FAR clauses for D-B. Industry requested clauses during the comment period for the FAR case implementing the 2 phase D-b process in 36.3 in 1996. However the Part 36 committee declined because 1) it was beyond their directed charter and 2) (I am assuming here) they didn't have any knowledge of those unique roles and responsibilities or the distinctions between an A-E contract and a D-B contract. I knew the chairperson of the committee. She was a lawyer, not a practitioner.

That seems to me to be similar to your situation.

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